Exhibit (c)(iii)
TATA ENGINEERING AND LOCOMOTIVE COMPANY
AND
CITIBANK, N.A.,
As Depositary
AND
HOLDERS AND BENEFICIAL OWNERS OF
RULE 144A GLOBAL DEPOSITARY RECEIPTS
-------------------------
Amendment No. 2
to
Rule 144A Deposit Agreement
Dated as of [September 30], 2002
AMENDMENT NO.2 TO RULE 144A DEPOSIT AGREEMENT
AMENDMENT NO. 2 TO RULE 144A DEPOSIT AGREEMENT, is made as of ________,
2002 (the "Amendment"), by and among Tata Engineering and Locomotive Company
Limited, a limited liability company organized under the laws of the Republic of
India as a public company (the "Company"), CITIBANK, N.A., a national banking
association organized under the laws of the United States of America and acting
solely as depositary (the "Depositary"), and all Holders and Beneficial Owners
from time to time of Rule 144A Global Depositary Receipts issued under the Rule
144A Deposit Agreement.
W I T N E S S E T H T H A T
WHEREAS, the parties hereto entered into that certain Rule 144A Deposit
Agreement, dated as of July 15, 1994, as amended by Amendment No. 1, dated as of
July 19, 1996, as further amended by Letter Agreement, dated August 13, 1996 (as
so amended the "Deposit Agreement") for the creation of Rule 144A Global
Receipts ("Rule 144A GDRs") evidencing Rule 144A Global Depositary Shares ("Rule
144A GDSs") representing the Shares (as defined in the Deposit Agreement) so
deposited and for the execution and delivery of such Rule 144A GDRs evidencing
such Rule 144A GDRs;
WHEREAS, the Company and the Depositary have agreed to change the fees and
charges of the Depositary by adding an Annual Depositary Services Fee, and
desire to amend the Deposit Agreement to reflect such change; and
WHEREAS, pursuant to Section 6.01 of the Deposit Agreement, the Company
and the Depositary deem it necessary and desirable to amend the Deposit
Agreement and the form of Rule 144A GDR annexed thereto as Exhibit A for the
purposes set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise defined in this Amendment, all
capitalized terms used, but not otherwise defined, herein shall have the meaning
given to such terms in the Deposit Agreement.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01. Deposit Agreement. All references in the Deposit Agreement
to the term "Deposit Agreement" shall, as of the Effective Date (as herein
defined), refer to the Deposit Agreement, dated as of July 15, 1994, as amended
by Amendment No. 1, dated as of July 19, 1996, as further amended by Letter
Agreement, dated August 13, 1996, as amended by this Amendment No. 2.
SECTION 2.02. Charges of Depositary. Section 5.06 shall be amended by
adding the following subsection immediately after subsection (vii) of paragraph
(a):
"(viii) the Annual Depositary Service Fee, payable at the end of each
calendar year except to the extent of any cash dividend fee(s) charged during
the calendar year pursuant to paragraph (a)(ii) above, which shall not exceed
$0.02 per Rule 144A GDS held at the end of each calendar year (to be paid by the
Holder of record at the end of each calendar year)."
ARTICLE III
AMENDMENTS TO THE FORM OF RULE 144A GDR
SECTION 3.01. Charges of Depositary. Paragraph (7) of the Form of Rule
144A GDR is hereby amended by inserting the following sentence after the fourth
sentence of the first paragraph:
"The Depositary will charge the Holders an Annual Depositary Service Fee
up to $0.02 per Rule 144A GDS held at the end of the calendar year, except to
the extent of any cash dividend fee(s) charged during such calendar year."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Company represents and
warrants to, and agrees with, the Depositary and the Holders, that:
(a) This Amendment, when executed and delivered by the Company, and the
Rule 144A Deposit Agreement and all other documentation executed and
delivered by the Company in connection therewith, will be and have been,
respectively, duly and validly authorized, executed and delivered by the
Company, and constitute the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
moratorium and
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similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Rule 144A Deposit
Agreement as amended hereby, and any other document furnished hereunder or
thereunder in the Republic of India, neither of such agreements need to be
filed or recorded with any court or other authority in the Republic of
India, nor does any stamp or similar tax need to be paid in the Republic
of India on or in respect of such agreements; and
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Effective Date. This Amendment is dated as of the date set
forth above and shall become effective as to the outstanding Rule 144A GDRs upon
the expiration of thirty (30) days after notice of this amendment has been given
to the Holders of record of outstanding Rule 144A GDRs.
SECTION 5.02. Notice of Amendment to Holders. The Depositary is hereby
directed to send notices informing the Holders of (i) the terms of this
Amendment and (ii) the Effective Date of this Amendment.
SECTION 5.03. Indemnification. The Company agrees to indemnify and hold
harmless the Depositary (and any and all of its directors, employees and
officers) for any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
SECTION 5.04. Ratification. Except as expressly amended hereby, the terms,
covenants and conditions of the Deposit Agreement as originally executed shall
remain in full force and effect.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this Amendment to
be executed by representatives thereunto duly authorized as of the date set
forth above.
TATA ENGINEERING AND
LOCOMOTIVE COMPANY LIMITED
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Director - Finance and
Corp. Affairs
CITIBANK, N.A., as Depositary
By: /s/ Xxxxxx Xxxxxxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxxxxxx
Title: Director, Account Management
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